As I have discussed previously (here and here), all judges in Texas are subject to partisan elections, and an incumbent justice on the Texas Supreme Court (all nine members of which are Republicans) named Paul Green is facing a March 1 primary challenge by an evangelical speaker and radio talk show host named Rick Green. The potential for name confusion may be deliberate, since two other seats on the court (neither held by a justice named Green) are also on the ballot. Rick Green, who has no prior judicial experience (and very little relevant legal experience) claims that he was motivated to run against Justice Paul Green, an 11-year veteran of the Texas Supreme Court, because — out of the thousands of cases he has participated in — Paul Green joined the court’s 5-3 decision in Texas v. Naylor, the so-called “gay divorce” case.
Naylor was decided on June 19, 2015, shortly before the U.S. Supreme Court issued the controversial Obergefell v. Hodges decision, which “recognized” a constitutional right to same-sex marriage. In Naylor, the Texas Supreme Court dismissed an appeal on procedural grounds (for lack of “standing”), declining to hear the merits of the Texas Attorney General’s challenge to a divorce granted by a Texas trial court to a lesbian couple who were married in Massachusetts. Naylor found that the Attorney General could not maintain the appeal because he had intervened in the case too late — after judgment was entered in the trial court. Prior to Obergefell, Texas did not recognize same-sex marriage.
Rick Green contends that Naylor was an activist decision that undermined Texas’s commitment to traditional marriage. Recently, Rick Green’s campaign circulated an endorsement email from Rick Green’s WallBuilders colleague, David Barton, containing this statement: “[J]ust prior to the U.S. Supreme Court’s decision in favor of homosexual marriage last summer, the Texas Supreme Court also had five of our Justices hand down a decision that was in favor of homosexual marriage. Can you imagine that? Here in conservative Texas we have five judicial activists on the State Supreme Court?” (Emphases added.)
On February 1, Scott A. Brister and Dale Wainwright, both former justices of the Texas Supreme Court and both reliably conservative, wrote a piece on National Review Online defending the court’s majority opinion in Naylor, in which they did not participate. As stated earlier, in Naylor the court dismissed the appeal on procedural grounds and did not reach the merits of whether a Texas court should — or even could — grant a divorce to a same-sex couple prior to Obergefell. Of the court’s nine Republican members, five found that the Attorney General’s attempted intervention was too late, three would have allowed the untimely intervention, and one justice abstained from the case. In their NRO piece, Brister and Wainwright directly refuted the contention that Naylor was an “activist” decision, but they stopped short of endorsing the majority’s jurisdictional determination.
I agree with Brister and Wainwright as far as they go. The justices comprising the Naylor majority are not activists, and the opinion in no way indicates any belief by those justices in a constitutional right to same-sex marriage. In light of David Barton’s spurious contention (quoted above), I will take the defense of Naylor a step further: Not only are Brister and Wainwright correct, but so was the Naylor majority’s reasoning. In fact, the Naylor opinion constitutes an admirable display of conservative jurisprudence and served to defend rather than endanger Texas’s ban on same-sex marriage. Here is why:
First, the Attorney General was indeed late to intervene in Naylor and that tardiness was fatal to any appeal. Well-established Texas law requires that intervention — the attempt by a litigant who is not a party to a case to make itself a party to the case — must occur before the trial court renders judgment. The only way a litigant may intervene post-judgment is if the trial court judge withdraws the judgment to let the intervenor in.
In Naylor, the Attorney General’s office did not attempt to intervene until a day after the judgment had been rendered — despite having been monitoring the litigation for months — and never even requested the trial court to withdraw its judgment. The majority in Naylor correctly held that under well-established principles of Texas law, the Attorney General’s office was simply too late.
In dissent, however, Justice Don Willett, joined by two other justices, argued that the Attorney General’s special role as the defender of state law should have merited an exception for the state in this case. However, the Naylor majority maintained, as Texas courts have always maintained, that the state must follow the same rules as all other litigants. By declining to invent such an exception, the Naylor majority exhibited judicial restraint, a conservative virtue. If any position in Naylor was activist, it was the dissent, which advocated for the creation of a special exception for the state, cut from whole cloth and with no precedent, so that the court could hear the merits of the state’s argument. When courts stretch the law to reach an issue they want to reach, that constitutes judicial activism.
When courts strain to reach issues not properly before them, they exceed their proper judicial role. The dissent in Naylor proposed that the court make a special, easier-to-follow rule that would apply only to the government and not to private litigants. The result in Naylor would have been to allow a politically conservative Attorney General’s office to advance its agenda in the courts. But what about when a politically liberal Attorney General takes office with a politically liberal agenda to advance? One shudders to imagine the cases a left-wing Attorney General’s office would insert itself into with the more forgiving post-judgment intervention procedure suggested by the dissent in Naylor.
In addition, by refusing to reach the merits in Naylor, the Texas Supreme Court actually insulated Texas’s ban on same-sex marriage from challenges to its constitutionality. For one thing, although the trial court granted a divorce to the lesbian couple, it didn’t declare Texas’s same-sex marriage ban unconstitutional. So declining to reach the issue of the ban’s constitutionality meant the ban remained intact and untouched. Even more importantly, by deciding the case on an issue of state procedural law, the Texas Supreme Court foreclosed any possibility the U.S. Supreme Court would review the case.
Remember, when Naylor was decided, it was still unclear what the U.S. Supreme Court would do in the pending Obergefell case. It was possible, and some pundits thought it was fairly probable, that the Court would hold that states could continue to define marriage as they saw fit, but leave open the question of whether states which banned same-sex marriage nevertheless must recognize same-sex marriages performed in other states. Imagine if that had that been the U.S. Supreme Court’s holding in Obergefell, and that the Texas Supreme Court had reached the constitutional issue in Naylor and held that Texas courts need not recognize the Massachusetts same-sex marriage. In that instance, Naylor would have been primed to be the U.S. Supreme Court’s next big marriage case, and Texas’s ban on recognizing same-sex marriages could have been struck down. By deciding the case on a question of pure Texas procedure, the Texas Supreme Court deprived the U.S. Supreme Court of any jurisdiction over Naylor.
Of course, all this turned out to be moot. The U.S. Supreme Court’s ruling in Obergefell is now the law of the land. But the Naylor majority’s tight view of its jurisdiction, its strict adherence to the principles of judicial restraint, and its refusal to give in to the temptations of judicial activism gave Texas’s ban on same-sex marriage the best protection possible under the circumstances. Hindsight, they say, is 20-20. Even in hindsight, and in fairness to the Naylor majority, its ruling was absolutely correct on the law, and a model of judicial restraint.
Contrary to its demagogic critics, who pander to uninformed audiences with shallow legal analysis, the Naylor majority produced a judicially conservative decision. Republican primary voters should salute Justice Paul Green for voting as he did.